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Law and Society

The concepts of law and society refer to macrostructural phenomena. Is there a macrooriented theory of law and society or a macro sociolegal theory to guide this field? As an interdisciplinary endeavor, the sociology of law relies upon, or is influenced by, the intellectual assumptions and propositions of general sociology and legal theory. This article will therefore consider the relationship of this field to both parent disciplines.

Relationship to General Sociology

It is no exaggeration to state that the field of sociology lacks a systematically developed and precise theory of society. Although interest in macrosociological theory building has been in evidence for the past two decades, particularly among those concerned with comparative sociology (Eisenstadt and Curelaru 1977), no such theory has yet been developed in sufficient detail and precision to guide empirical research. This is not to deny the fact that such macrotheorists as Marx, Durkheim, Weber, and Parsons have exerted a pervasive influence on various specialties within sociology, including the relationship between law and society.

Marx

Marx conceived of law as a component of the ‘‘superstructure’’ of a capitalist society. As an epiphenomenon of the superstructure, it provides a rationale or ideology for preserving the existing class relations in a capitalist economy. Concepts of property and contract, for example, become instrumentalities for maintaining and reproducing class hegemony. In other words, legal concepts and doctrines reinforce the position of the ruling class and, at the same time, become the constituents of the ‘‘false consciousness’’ from which the working class suffers. Implicit in this theory of law as a weapon wielded by the state in a capitalist society against the working class is the assumption that if private property were abolished and a classless socialist society were ushered in, the state would ‘‘wither away’’ and, with it, law would ‘‘wither away’’ as well.

As usually formulated, the Marxian theory of law and society is not empirically verifiable. It does not follow, however, that this theory is devoid of any empirical implications. Questions can be raised—and have been raised—concerning class bias in the adjudication of civil and criminal cases, in the emergence of significantlegal norms—for example, those regarding inheritance—and in the recurrent failure of agrarian reform laws. Likewise, it is possible to investigate a proposition counter to the Marxian thesis, namely, that the passage of laws in a capitalist state can potentially diminish the power of the ruling class vis-à-vis the working class. A case in point is the enactment of the National Labor Relations Act of 1935 in the United States, which institutionalized the rights of employees to unionize and to engage in collective bargaining with employers. Research questions such as those cited above would test the validity of some propositions derivable from the Marxian theory of law and society.

Durkheim

Turning to Durkheim’s contribution to this field, one of necessity reverts to his Division of Labor in Society (1933), in which he argued that in societies characterized by ‘‘mechanical solidarity’’ there is a predominance of repressive laws, whereas in societies characterized by ‘‘organic solidarity’’ there is a predominance of restitutive laws. A number of social scientists have subjected Durkheim’s thesis to empirical tests and have found it wanting (Schwartz and Miller 1964). It is a testament, however, to the intriguing character of Durkheim’s thesis that it continues to evoke the interest of researchers (Baxi 1974; Schwartz 1974; Sheleff 1975). A more general formulation of Durkheim’s thesis would be that societies differing along various dimensions of societal development—of which the division of labor is but one—will exhibit systematic differences in their legal systems (Evan 1968).

In the course of developing his thesis that the division of labor is the principal source of social solidarity, Durkheim formulated his seminal idea of an ‘‘index’’ (Durkheim 1933, pp. 64–65). Apart from his fame as the ‘‘father of modern sociology,’’ Durkheim is the originator of the concept of an ‘‘index’’, that is, an indirect and ‘‘external’’ measure of a complex dimension of social structure such as social solidarity. That he developed the concept of an index in connection with ‘‘juridical rules’’ and types of laws is of particular interest to sociologists of law and legal scholars. Under the circumstances, it is indeed surprising that to date, with few exceptions (Evan 1965, 1968, 1980; Merryman, Clark, and Friedman 1979; Lidz 1979), this facet of Durkheim’s work has been neglected. The concept of a ‘‘legal index’’ or a ‘‘legal indicator’’ merits systematic attention if we are to become more precise in our understanding of the role of law in social change.

Weber

In comparison with the work of Durkheim and Marx, Weber’s contributions to the sociology of law are appreciably more diverse and complex. Embedded in an intricate mosaic of ideal types and comparative and historical data on the emergence of legal rationality in Western civilization and on the role of law in the origins of capitalism (Weber 1950; Rheinstein 1954; Trubek 1972; Collins 1980), Weber’s welter of legal conceptualizations poses a difficult challenge to the empirically oriented researcher. For example, his famous typology of lawmaking and lawfinding suggests possible research leads for comparative and historical analysis. Rheinstein, who edited and translated Weber’s work on the sociology of law, lucidly summarizes his typology in the following manner:

1. irrational, i.e., not guided by general rules

a. formal: guided by means which are beyond the control of reason (ordeal, oracle, etc.)
b. substantive: guided by reaction to the individual case

2. rational, i.e., guided by general rules

a. substantive: guided by the principles of an ideological system other than that of the law itself (ethics, religion, power, politics, etc.)
b. formal:

(1) extrinsically, i.e., ascribing significance to external acts observable by the senses

(2) logically, i.e., expressing its rules by the use of abstract concepts created by legal thought itself and conceived of as constituting a complete system. (Rheinstein 1954, p. 1)

Assuming that the meaning of each of these ideal type categories can be clarified and that legal indicators can be developed for each of the types, a comparative study could be undertaken to explore differences in lawmaking and in lawfinding of such major legal systems as common law, civil law, socialist law, and Moslem law. Equally challenging would be a study of long-term trends within each of these legal systems. The findings of such an inquiry would shed light on the occurrence of the evolutionary stages postulated by Weber.

The general development of law and procedure may be viewed as passing through the following stages: first, charismatic legal revelation through ‘‘law prophets’’; second, empirical creation and finding of law by legal honoratiores; . . . third, imposition of law by secular or theocratic powers; fourth and finally, systematic elaboration of law and professionalized administration of justice by persons who have received their legal training in a learned and formally logical manner. (Rheinstein 1954, p. 303)

Another significant thesis in Weber’s corpus of writings on law is the innovative role he attributes to ‘‘legal honoratiores’’ or ‘‘legal notables’’ (Bendix 1960). Is Weber’s thesis more valid for civil law systems, with its heavy immersion in Roman law, than it is for common law, let alone for socialist law or Moslem law? Once again it would be necessary to develop appropriate legal indicators to measure the degree to which legal notables—lawyers, judges, and high-level civil servants—introduce new rules and new interpretations of existing legal norms in the course of administering justice.

Parsons

For decades, Parsons was the leading macrosociological theorist in the United States, making singular contributions to structural functionalism and to a general theory of action. Focusing on the action of social systems, Parsons developed a ‘‘four-function paradigm.’’ According to Parsons, every society faces four subsystem problems: adaptation, goal attainment, integration, and pattern maintenance or latency (AGIL). The societal subsystems associated with these four functional problems are, respectively, the economy, the polity, law, and religion and education.

Following Weber, Parsons treats law as a rational-legal system consisting of a set of prescriptions, proscriptions, and permissions. The legal system, especially in highly differentiated modern societies, performs the functions of a ‘‘generalized mechanism of social control’’ (Parsons 1962). This function is performed vis-à-vis the economy, the polity, and pattern maintenance or latency. The net effect of the pervasive normative regulation is the integration of society. As Parsons puts it: ‘‘The legal system . . . broadly constitutes what is probably the single most important institutional key to understanding . . . problems of societal integration’’ (Parsons 1978, p. 52).

With his four-function paradigm, Parsons addresses the nexus between law and society with the aid of ‘‘generalized media of interchange.’’ The economy in a developed and differentiated society uses the medium of money for transactions. Functionally analogous media of exchange operate in each of the other subsystems—power in the polity, value commitment in pattern maintenance, and influence in law.

Suggestive as Parsons’s framework is for understanding interinstitutional relations, the generalized media of interchange have not, as yet, been operationalized so as to explain how the legal system interacts with other societal subsystems. In other words, since Parsons has not explicated specific linkages between the legal and nonlegal subsystems, it is difficult to discern what hypotheses can be tested against any body of data. Hence, a reasonable conclusion is that Parsons’s macrosociological theory, in its present form, is actually a metatheory.

The foregoing review of some sociological theories of law and society raises two common themes:

(1) each of the theorists endeavored to comprehend the macrostructural relationships between law and other institutional systems of a society, and

(2) if the hypotheses implicit in these theories are to be empirically tested, systematic attention would have to be devoted to the development of a body of legal indicators.

The current generation of sociologists of law has yet to face up to the problems engendered by both of these themes.

Relationship to Legal Theory

Is the relationship between the sociology of law and the field of legal theory any less problematic than it is with general sociology? On its face, the question should be answered in the affirmative because the sociologist of law must take some of the legal scholars’ subjects as objects of inquiry. In actuality, because of the traditions of legal scholarship, legal scholars do not generally provide an analytical basis for sociological research. Legal scholarship tends to be preoccupied with legal rules, legal principles, and their application to a multitude of specific conflict situations. As a consequence, the scholarly literature—apart from being intellectually insular—is almost entirely verbal and idiographic, with virtually no interest in a nomothetic, let alone quantitative, analysis of legal phenomena. Furthermore, there is a high degree of specialization within legal scholarship such that most scholars tend to devote their entire careers to a particular body of law, be it labor law, criminal law, contract law, family law, and so forth, in their own country. Those scholars specializing in comparative law are inclined to study a particular specialty, for example, family law, by comparing case studies from two or more countries (Glendon 1975). Relatively few legal scholars seek to study the legal system of an entire society, such as the work of Hazard (1977) and Berman (1963) on the Soviet legal system. And fewer still have had the temerity to undertake systematic comparisons of total legal systems or families of legal systems, as exemplified in the work of David and Brierly (1968) and Wigmore (1928); and those who make no effort tolerate characteristics of total legal systems to the social-structural attributes of the societies in which they are embedded.

Surveying current legal theory, three distinct theoretical perspectives can be discerned: the theory of legal autonomy, critical legal studies, and autopoietic law. Each of these perspectives will be briefly reviewed and appraised for their implications for a theory of law and society.

Legal Autonomy

Traditional conceptions of the legal order and ‘‘sources of law’’ are based on two assumptions, the first being that the law is a ‘‘seamless web,’’ a relatively ‘‘closed system.’’ Whatever processes of change occur in the law are generated from within the legal system, not from without. In other words, processes of change are immanent or endogenous and are not externally induced. The second assumption is that the legal system is, by definition, autonomous from other systems or institutions of a society. Therefore, it is unnecessary to inquire into how the legal system interacts with other subsystems of a society or into what degree of autonomy a given legal system actually has from other societal subsystems.

Perhaps the most quintessential articulation of the theory of legal autonomy in recent years can be found in the work of Watson, a renowned legal historian and comparative law scholar. Watson has repeated his thesis of legal autonomy in a number of monographs and articles (Watson 1974, 1978, 1981, 1983, 1985, 1987). He contends that the growth and evolution of the law is determined largely by an autonomous legal tradition, which exists and operates outside the sphere of societal needs.

To a large extent law possesses a life and vitality of its own; that is, no extremely close, natural or inevitable relationship exists between law, legal structures, institutions and rules on the one hand and the needs and desires and political economy of the ruling elite or of the members of the particular society on the other hand. If there was such a close relationship, legal rules, institutions and structures would transplant only with great difficulty, and their power of survival would be severely limited. (Watson 1978, pp. 314–315)

Law is largely autonomous and not shaped by societal needs; though legal institutions will not exist without corresponding social institutions, law evolves from the legal tradition. (Watson 1985, p. 119).

Unlike the Marxist view of law, Watson’s is that the law does not advance the interests of the ruling class; instead, it reflects the ‘‘culture’’ of the legal elite. He bolsters his provocative thesis with a study of legal borrowing, which he refers to as ‘‘legal transplants’’ (1974). The fact that the individual statutes, legal doctrines, and entire codes have been borrowed by countries differing in cultural, political, economic, and other respects provides evidence, according to Watson, in support of his thesis of legal autonomy.

The concept of ‘‘legal transplant’’ has a naturalistic ring to it as though it occurs independent of any human agency. In point of fact, however, elites—legal and nonlegal—often act as ‘‘culture carriers’’ or intermediaries between societies involved in a legal transplant. Legal scholars who are associated with political elites may be instrumental in effecting a legal transplant. Moreover, many instances of legal borrowing involve the ‘‘imposition’’ of a foreign body of law by a colonial power (Burman and Harrell-Bond 1979). Hence, it is a mistake to describe and analyze the diffusion of law as if it were devoid of human agency. If human volition is involved, it is indeed questionable whether the borrowed legal elements do not perform a societal function—at the very least on behalf of the legal elite.

Critical Legal Studies

Unlike Watson’s internalist focus on the legal system and its autonomous development, the critical legal studies (CLS) movement appears to pursue a dual strategy: externalist as well as internalist. CLS is externalist in its critique of the social order and of the values dominating judicial decision making. It is internalist in its fundamental critique of traditional jurisprudence and legal reasoning.

The CLS movement emerged in the late 1970s in American law schools. It brought together a diverse group of scholars with a left-of-center ideology concerned about inequality and injustice in American society. Although lacking any consensus regarding societal transformation, CLS scholars sought to identify the impact of society’s dominant interests on the legal process and the impact of social and political values on legal decision making.

In his introduction to a volume of essays by CLS authors, David Kairys discusses the ‘‘basic elements’’ of the legal theory of this movement. Three of these elements are externalist in nature:

We place fundamental importance on democracy, by which we mean popular participation in the decisions that shape our society and affect our lives . . . We reject the common characterization of the law and the state as neutral, value-free arbiters, independent of and unaffected by social and economic relations, political forces, and cultural phenomena. The law’s ultimate mechanism for control and enforcement is institutional violence, but it protects the dominant system of social and power relations against political and ideological as well as physical challenges. (Kairys 1982, pp. 3–5)

These three externalist principles of the CLS movement have a familiar ring to them; namely, they are reminiscent of criticisms leveled by Marxists and neo-Marxists against the legal order of capitalist societies.

By far the most distinctive contribution of the CLS movement has been its elaborate internalist critique of legal reasoning and legal process. As Kairys puts it:

We reject . . . the notion that a distinctly legal mode of reasoning or analysis characterizes the legal process or even exists . . . There is no legal reasoning in the sense of a legal methodology or process for reaching particular, correct results. There is a distinctly legal and quite elaborate system of discourse and body of knowledge, replete with its own language and conventions of argumentation, logic, and even manners. In some ways these aspects of the law are so distinct and all-embracing as to amount to a separate culture; and for many lawyers the courthouse, the law firm, the language, the style, become a way of life. But in terms of a method or process for decision making—for determining correct rules, facts, or results—the law provides only a wide and conflicting variety of stylized rationalizations from which courts pick and choose. Social and political judgments about the substance, parties, and context of a case guide such choices, even when they are not the explicit or conscious basis of decision. (Kairys 1982, p. 3)

Not only do critical legal scholars reject the notion of legal reasoning, they also reject other idealized components constituting a ‘‘legal system,’’ in particular, that law is a body of doctrine, that the doctrine reflects a coherent view of relations between persons and the nature of society, and that social behavior reflects norms generated by the legal system (Trubek 1984, p. 577).

The general conclusion CLS writers draw from ‘‘unmasking’’ the legal system, ‘‘trashing’’ mainstream jurisprudence, and ‘‘deconstructing’’ legal scholarship (Barkan 1987) is that ‘‘law is simply politics by other means’’ (Kairys 1982, p. 17). Such a conclusion, on its face, does not hold out any promise for developing a new, let alone heuristic, approach to a theory of law and society. On the contrary, its antipositivism combined with its search for a transformative political agenda has prompted CLS writers to view with increasing skepticism the sociology of law and research into the relationship between law and society (Trubek and Esser 1989).

Autopoietic Law

Similar in some respects to Watson’s theory of legal autonomy, but fundamentally different from the theory of the CLS movement, autopoietic law claims to be a challenging new theory of law and society (Teubner 1988a). For the past few years several continental social theorists, who are also legal scholars, have enthusiastically developed and propagated the theory of autopoietic law. A complex cluster of ideas, this theory is derived from the work of two biologists, Maturana and Varela (Varela 1979; Maturana and Varela 1980).

In the course of their biological research, Maturana and Varela arrived at some methodological realizations that led them to generalize about the nature of living systems. Maturana coined the term autopoiesis to capture this new ‘‘scientific epistemology’’ (Maturana and Varela 1980, p. xvii). ‘‘This was a word without a history, a word that could directly mean what takes place in the dynamics of the autonomy proper to living systems.’’ Conceptualizing living systems as machines, Maturana and Varela present the following rather complex and abstract definition:

Autopoietic machines are homeostatic machines. Their peculiarity, however, does not lie in this but in the fundamental variable which they maintain constant . . . an autopoietic machine continuously generates and specifies its own organization through its operation as a system of production of its own components, and does this in an endless turnover of components under conditions of continuous perturbations and compensation of perturbations. (Maturana and Varela 1980, pp. 78–79)

Another definition of autopoiesis is presented by Zeleny, one of the early advocates of this new theory:

An autopoietic system is a distinguishable complex of component-producing processes and their resulting components, bounded as an autonomous unity within its environment, and characterized by a particular kind of relation among its components, and component-producing processes: the components, through their interaction, recursively generate, maintain, and recover the same complex of processes which produced them. (Zeleny 1980, p. 4)

Clearly, these definitions and postulates are rather obscure and high-level generalizations that, from a general systems theory perspective (Bertalanffy 1968), are questionable. Especially suspect is the assertion that autopoietic systems do not have inputs and outputs. The authors introduce further complexity by postulating second- and third-order autopoietic systems, which occur when autopoietic systems interact with one another and, in turn, generate a new autopoeitic system (Maturana and Varela 1980, pp. 107–111). Toward the end of their provocative monograph, Maturana and Varela raise the question of whether the dynamics of human societies are determined by the autopoiesis of its components. Failing to agree on the answer to this question, the authors postpone further discussion (Maturana and Varela 1980, p. 118). Zeleny, however, hastens to answer this question and introduces the notion of ‘‘social autopoiesis’’ to convey that human societies are autopoietic (Zeleny 1980, p. 3).

Luhmann, an outstanding German theorist and jurist, has also gravitated to the theory of autopoiesis. According to Luhmann, ‘‘social systems can be regarded as special kinds of autopoietic systems’’ (1988b, p. 15). Influenced in part by Parsons and general systems theory, Luhmann applied some systems concepts in analyzing social structures (1982). In the conclusion to the second edition of his book A Sociological Theory of Law (1985), Luhmann briefly refers to new developments in general systems theory that warrant the application of autopoiesis to the legal system. Instead of maintaining the dichotomy between closed and open systems theory, articulated by Bertalanffy, Boulding, and Rapoport (Buckley 1968), Luhmann seeks to integrate the open and closed system perspectives. In the process he conceptualizes the legal system as self-referential, self-reproducing, ‘‘normatively closed,’’ and ‘‘cognitively open’’—a theme he has pursued in a number of essays (1985, 1986, 1988c).

This formulation is, to say the least, ambiguous. Given normative closure, how does the learning of the system’s environmental changes, expectations, or demands get transmitted to the legal system? Further complicating the problem is Luhmann’s theory of a functionally differentiated modern society in which all subsystems—including the legal system—tend to be differentiated as self-referential systems, thereby reaching high levels of autonomy (Luhmann 1982). Although Luhmann has explicitly addressed the issue of integrating the closed and open system perspectives of general systems theory, it is by no means evident from his many publications how this is achieved.

Another prominent contributor to autopoietic law is the jurist and sociologist of law Gunther Teubner. In numerous publications, Teubner discusses the theory of autopoiesis and its implications for reflexive law, legal autonomy, and evolutionary theory (Teubner 1983a, 1983b, 1988a, 1988b). One essay, ‘‘Evolution of Autopoietic Law’’ (1988a), raises two general issues: the pre-requisites of autopoietic closure of a legal system, and legal evolution after a legal system achieves autopoietic closure. With respect to the first issue, Teubner applies the concept of hypercycle, which he has borrowed from others but which he does not explicitly define. Another of his essays (Teubner 1988b) reveals how Teubner is using this concept. For Teubner, all self-referential systems involve, by definition, ‘‘circularity’’ or ‘‘recursivity’’ (1988b, p. 57). Legal systems are preeminently self-referential in the course of producing legal acts or legal decisions. However, if they are to achieve autopoietic autonomy their cyclically constituted system components must become interlinked in a ‘‘hypercycle,’’ ‘‘i.e., the additional cyclical linkage of cyclically constituted units’’ (Teubner 1988b, p. 55). The legal system components—as conceptualized by Teubner, ‘‘element, structure, process, identity boundary, environment, performance, function’’ (1988b, p. 55)—are general terms not readily susceptible to the construction of legal indicators.

The second question Teubner addresses, legal evolution after a legal system has attained autopoietic closure, poses a similar problem. The universal evolutionary functions of variation, selection, and retention manifest themselves in the form of legal mechanisms.

In the legal system, normative structures take over variation, institutional structures (especially procedures) take over selection and doctrinal structures take over retention. (Teubner 1988a, p. 228)

Since Teubner subscribes to Luhmann’s theory of a functionally differentiated social system, with each subsystem undergoing autopoietic development, he confronts the problem of intersubsystem relations as regards evolution. This leads him to introduce the intriguing concept of co-evolution.

The environmental reference in evolution however is produced not in the direct, causal production of legal developments, but in processes of co-evolution. The thesis is as follows: In co-evolutionary processes it is not only the autopoiesis of the legal system which has a selective effect on the development of its own structures; the autopoiesis of other subsystems and that of society also affects—in any case in a much more mediatory and indirect way—the selection of legal changes. (Teubner 1988a, pp. 235–236)

Given the postulate of ‘‘autopoietic closure,’’ it is not clear by what mechanisms nonlegal subsystems of a society affect the evolution of the legal system and how they ‘‘co-evolve.’’ Once again, we confront the unsolved problem in the theory of autopoiesis of integrating the closed and open systems perspectives. Nevertheless, Teubner, with the help of the concept of co-evolution, has drawn our attention to a critical problem even if one remains skeptical of his proposition that ‘‘the historical relationship of ‘law and society’ must, in my view, be defined as a co-evolution of structurally coupled autopoietic systems’’ (Teubner 1988a, p. 218).

At least three additional questions about autopoietic law can be raised. Luhmann’s theory of a functionally differentiated society in which all subsystems are autopoietic raises anew Durkheim’s problem of social integration. The centrifugal forces in such a society would very likely threaten its viability. Such a societal theory implies a highly decentralized social system with a weak state and a passive legal system. Does Luhmann really think any modern society approximates his model of a functionally differentiated society?

A related problem is the implicit ethnocentrism of social scientists writing against the background of highly developed Western societies where law enjoys a substantial level of functional autonomy, which, however, is by no means equivalent to autopoietic closure. In developing societies and in socialist countries, many of which are developing societies as well, this is hardly the case. In these types of societies legal systems tend to be subordinated to political, economic, or military institutions. In other words, the legal systems are decidedly allopoietic. To characterize the subsystems of such societies as autopoietic is to distort social reality.

A third problem with the theory of autopoietic law is its reliance on the ‘‘positivity’’ of law. This fails to consider a secular legal trend of great import for the future of humankind, namely, the faltering efforts—initiated by Grotius in the seventeenth century—to develop a body of international law. By what mechanisms can autopoietic legal systems incorporate international legal norms? Because of the focus on ‘‘positivized’’ law untainted by political, religious, and other institutional values, autopoietic legal systems would have a difficult time accommodating themselves to the growing corpus of international law.

Stimulating as is the development of the theory of legal autopoiesis, it does not appear to fulfill the requirements for a fruitful theory of law and society (Blankenburg 1983). In its present formulation, autopoietic law is a provocative metatheory. If any of its adherents succeed in deriving empirical propositions from this metatheory (Blankenburg 1983), subject them to an empirical test, and confirm them, they will be instrumental in bringing about a paradigm shift in the sociology of law.

The classical and contemporary theories of law and society, reviewed above, all fall short in providing precise and operational guidelines for uncovering the linkages over time between legal and nonlegal institutions in different societies. Thus, the search for a scientific macro sociolegal theory will continue. To further the search for such a theory, a social-structural model will now be outlined.

A Social-structural Model

A social-structural model begins with a theoretical amalgam of concepts from systems theory with Parsons’ four structural components of social systems: values, norms, roles, and collectivities (Parsons 1961, pp. 41–44; Evan 1975, pp. 387–388). Any subsystem or institution of a societal system, whether it be a legal system, a family system, an economic system, a religious system, or any other system, can be decomposed into four structural elements: values, norms, roles, and organizations. The first two elements relate to a cultural or normative level of analysis and the last two to a social-structural level of analysis. Interactions between two or more subsystems of a society are mediated by cultural as well as by social-structural elements. As Parsons has observed, law is a generalized mechanism for regulating behavior in the several subsystems of a society (Parsons 1962, p. 57). At the normative level of analysis, law entails a ‘‘double institutionalization’’ of the values and norms embedded in other subsystems of a society (Bohannan 1968). In performing this reinforcement function, law develops ‘‘cultural linkages’’ with other subsystems, thus contributing to the degree of normative integration that exists in a society. As disputes are adjudicated and new legal norms are enacted, a value from one or more of the nonlegal subsystems is tapped. These values provide an implicit or explicit justification for legal decision making.

Parsons’s constituents of social structure (values, norms, roles, and organizations) are nested elements, as in a Chinese box, with values incorporated in norms, both of these elements contained in roles, and all three elements constituting organizations. When values, norms, roles, and organizations are aggregated we have a new formulation, different from Parsons’s AGIL paradigm, of the sociological concept of an institution. An institution of a society is composed of a configuration of values, norms, roles, and organizations. This definition is applicable to all social institutions, whether economic, political, religious, familial, educational, scientific, technological, or legal. In turn, the social structure of a society is a composite of these and other institutions.

Of fundamental importance to the field of the sociology of law is the question of how the legal institution is related to each of the nonlegal institutions. A preliminary answer to this question will be set forth in a model diagramming eight types of interactions or linkages between legal and nonlegal institutions (see Figure 1).

Figure 1
NOTE: A Social-Structural Model of the Interactions of Legal and Nonlegal Institutions

On the left-hand side of the diagram are a set of six nonlegal institutions, each of which is composed of values, norms, roles, and organizations. If the norms comprising the nonlegal institutions are sufficiently institutionalized, they can have a direct regulatory impact on legal personnel as well on the citizenry (interaction 4, ‘‘Single institutionalization’’). On the other hand, according to Bohannan (1968), if the norms of the nonlegal institutions are not sufficiently strong to regulate the behavior of the citizenry, a process of ‘‘double institutionalization’’ (interaction 1) occurs whereby the legal system converts nonlegal institutional norms into legal norms. This effect can be seen in the rise in the Colonial period of ‘‘blue laws,’’ which were needed to give legal reinforcement to the religious norms that held the Sabbath to be sacred (Evan 1980, pp. 517–518, 530–532). In addition, the legal system can introduce a norm that is not a component of any of the nonlegal institutions. In other words, the legal system can introduce an innovative norm (interaction 2) that does not have a counterpart in any of the nonlegal institutions (Bohannan 1968). An example of such an innovation is ‘‘no-fault’’ divorce (Weitzman 1985; Jacob 1988).

The legal system’s regulatory impact (interaction 3) may succeed or fail with legal personnel, with the citizenry, or with both. Depending on whether legal personnel faithfully implement the law, and the citizenry faithfully complies with the law, the effect on the legal system can be reinforcing (interaction 7) or subversive (interaction 5), and the effect on nonlegal institutions can be stabilizing (interaction 9) or destabilizing (interaction 6).

In systems-theoretic terms, the values of a society may be viewed as goal parameters in comparison with which the performance of a legal system may be objectively assessed. The inability of a legal system to develop ‘‘feedback loops’’ and ‘‘closed loop systems’’ to monitor and assess the efficacy of its outputs makes the legal system vulnerable to various types of failures. Instead of generating ‘‘negative feedback,’’ that is, self-corrective measures, when legal personnel or rankand-file citizens fail to comply with the law, the system generates detrimental ‘‘positive feedback’’ (Laszlo, Levine, and Milsum 1974).

Conclusion

What are some implications of this social-structural model? In the first place, the legal system is not viewed as only an immanently developing set of legal rules, principles, or doctrines insulated from other subsystems of society, as expressed by Watson and to some extent by Luhmann and Teubner. Second, the personnel of the legal system, whether judges, lawyers, prosecutors, or administrative agency officials, activate legal rules, principles, or doctrines in the course of performing their roles within the legal system. Third, formally organized collectivities, be they courts, legislatures, law-enforcement organizations, or administrative agencies, perform the various functions of a legal system. Fourth, in performing these functions, the formally organized collectivities comprising a legal system interact with individuals and organizations representing interests embedded in the nonlegal subsystems of a society. In other words, each of the society’s institutions or subsystems—legal and nonlegal—has the same structural elements: values, norms, roles, and organizations. Interinstitutional interactions involve an effort at coupling these structural elements across institutional boundaries. A major challenge to the sociologists of law is to discover the diverse coupling or linkages—cultural and social-structural—between the legal system and the nonlegal systems in terms of the four constituent structural elements. Another challenge is to ascertain the impact of these linkages on the behavior of legal personnel and on the behavior of the citizenry, on the one hand, and to measure the impact of ‘‘double institutionalization’’ on societal goals, on the other.

A serendipitous outcome of this model is that it suggests a definition of law and society or the sociology of law, that is, that the sociology of law deals primarily with at least eight interactions or linkages identified in Figure 6.5.1. Whether researchers accept this definition will be determined by its heuristic value, namely, whether it generates empirical research concerning the eight linkages.

See also: Sociology of Law

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This Aricle was Written by
WILLIAM M. EVAN

This Article was Published in
ENCYCLOPEDIA OF SOCIOLOGY
Second Edition
A Book by

EDGAR F BORGATTA
Editor-in-Chief
University of Washington, Seattle

AND

RHONDA J. V. MONTGOMERY
Managing Editor
University of Kansas, Lawrence

 

 
 
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